from the well,-at-least-there's-that dept

Back in December, we wrote about a ridiculous situation in Italy, where the site TripAdvisor was fined €500,000 by local regulators because it wasn't magically stopping people from posting "false reviews" on the site. As we noted at the time, it's stories like this that show why, here in the US, Section 230 of the CDA is so important. It makes it clear that you don't blame a third-party website for actions of its users. What the regulators were demanding was an impossibility. There is no realistic way for a user review site to make sure all the reviews are legit, at least not if it wants to allow user reviews, rather than hiring staff to do every review.

Thankfully, an Italian court has now overturned the fine and acknowledged that it was ridiculous in the first place. Rather than focusing on the problems of intermediary liability, the court just notes that TripAdvisor never made any promises that the reviews were accurate:

“TripAdvisor never asserted that all its reviews were true, pointing out instead that it is impossible to exercise a blanket control and inviting users to consider ‘trends’ in the reviews rather than single contributions,” the court said. “We do not understand the harm to the consumer identified by the Authority in its concluding arguments.”

That's good, though apparently a ridiculous counterproductive group called the National Consumers Union who brought the complaint in the first place wants to keep pressing the issue:

The National Consumers Union remained unconvinced, saying it intended to appeal the court’s “crude thesis.”

“We recognize that controlling on the Web may be more complicated than in a physical market, but the law and supervisory activity cannot remain permanently two steps behind current progress,” Massimiliano Dona, the union’s secretary, said in a statement.

This, of course, makes no sense. It's an argument for not the internet, in which anyone can express an opinion, but rather a top-down broadcast system, in which any statement must first be vetted. That would, effectively, destroy much of the power of the internet. It's hard to see how that helps "consumers" in Italy at all.

from the thank-goodness-for-section-230 dept

We've talked quite a bit about the importance of Section 230 of the CDA in the US, and how it protects internet sites from the actions of their users. Some have tried to downplay the importance of Section 230, arguing that it goes too far in protecting bad behavior, or even arguing that it has little impact on innovation. Yet, take a look at the situation in Italy, where regulators are now fining TripAdvisor because some people put up fake reviews on the site:

The American company, which allows travelers to rate hotels and restaurants around the world, has been fined 500,000 euros, or about $610,000, by an Italian regulator for not doing enough to prevent false reviews on its site.

The fine represents one of the first times that a review site has faced financial penalties in Europe or the United States for failing to clamp down on potentially false reviews.

The regulator, the Italian Competition Authority, called on TripAdvisor to stop “publishing misleading information about the sources of its reviews,” and gave the company 90 days to comply with the ruling.

Except, of course, it's not TripAdvisor "publishing" the "misleading information." It's TripAdvisor's users. This is the key point that we've made about Section 230: that it forces people to recognize the difference between a site and its users. In the past, we've even noted that we shouldn't even need a Section 230 because it should be common sense that you don't blame a site for the actions of its users -- but seeing how frequently people do that, the importance of Section 230 is quickly obvious.

TripAdvisor says it's going to appeal the decision -- as it should. Otherwise, it makes you wonder if TripAdvisor should bother doing business in Italy at all. And that would be a real shame. Just last year I visited Italy, and TripAdvisor was tremendously helpful in picking the hotel where I stayed (which turned out to be wonderful). Blaming and fining the site because some people misuse it seems like setting a really dangerous precedent.

from the seems-troubling dept

There were reports a few weeks ago that the European Commission has reopened its antitrust investigation into Google. The main issue is how Google promotes certain (usually internal) results in so-called "answer boxes" in a way that may hurt other sites. We've been skeptical of the idea of European bureaucrats deciding what Google's search results should look like, but earlier this year, it appeared that a settlement had been reached in which Google would point to competitors' results in some cases.

Against this backdrop, a few organizations, led by Yelp and TripAdvisor have created a somewhat fascinating site and tool called Focus On The User -- a play on Google's own core philosophy of "focus on the user and all else will follow." The site makes a very compelling argument that when Google is returning opinions (i.e., ratings) rather than factual answers, that it could do a much better job than just pointing to results from Google+. That is, if you do a search on "best restaurants in San Francisco" Google will show you results as rated by Google+ user reviews.

The Focus on the User site shows that rather than just relying on Google's own data, users would benefit greatly if Google used its own search algorithm to pull in results from reviews elsewhere. In short, where you might see a box up top with seven to ten reviews (all linking to Google pages), Yelp and TripAdvisor are arguing that if you just used Google's "organic" search algorithm to find the most relevant review pages, consumers get a much better experience. And they have a fair amount of data to back that up, showing a greater number of clicks in such a box (which you can test yourself via the site).

As noted above, the results are compelling. Using Google's own algorithm to rank all possible reviews seems like a pretty smart way of doing things, and likely to give better results than just using Google's (much more limited) database of reviews. But here's the thing: while I completely agree that this is how Google should offer up reviews in response to "opinion" type questions, I still am troubled by the idea that this should be dictated by government bureaucrats. Frankly, I'm kind of surprised this isn't the way Google operates, and it's a bit disappointing that the company doesn't just jump on this as a solution voluntarily, rather than dragging it out and having the bureaucrats force it upon them.

So while the site is fascinating, and the case is compelling, it still has this problem of getting into a very touchy territory where we're expecting government's to design the results of search engines. It seems like Yelp, TripAdvisor and others can make the case to Google and the public directly that this is a better way to do things, rather than having the government try to order Google to use it.

from the get-over-yourselves dept

FairSearch, the increasingly silly and shrill looking "coalition" of tech companies which have nothing in common other than a visceral hatred for Google (it's led by Microsoft) has so far failed miserably in convincing regulators that Google was an antitrust problem. Now it's filed a new attack on Google in the EU, arguing that its Android mobile strategy is anti-competitive because it gives Android away for free.

“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,” said Thomas Vinje, Brussels-based counsel to the FairSearch coalition. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

[....] Google achieved its dominance in the smartphone operating system market by giving Android to device-makers for ‘free.’

What's especially ridiculous here is that Microsoft, who is the major source behind FairSearch, dealt with this exact issue itself back during its antitrust fights, when people ridiculously accused it of the same thing for daring to give out Internet Explorer for "free." The idea that giving away some software for free is somehow anti-competitive is just laughable. That this is now being pushed by a bunch of companies who themselves use the exact same benefits of giving away free software to promote other parts of their business is just the height of cynical exploitation of the political process to try to hamstring a competitor in red tape, rather than competing in the marketplace.

Law Professor James Grimmelman, who is hardly a big Google supporter (he was among those who fought the hardest against the Google Books settlement) properly called this new filing by FairSearch "disgusting." It's a blatantly cynical attempt by Microsoft, Nokia, Expedia, TripAdvisor and Oracle to use a totally bogus legal complaint to just waste a competitor's time. All of those companies rely on free software in some form or another. No one in their right mind argues that offering free software is somehow anti-competitive. It seems that FairSearch has now reached hysterical desperation as it attempts to justify itself.

from the but-now-we-know-who's-upset-about-it... dept

Eric Goldman has an article at Forbes about the failure of the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee, to win its lawsuit against TripAdvisor for listing it as the "dirtiest hotel in America" on its 2011 list of such hotels. TripAdvisor, of course, is a very popular site, in which people rate various hotels. The company then took those rankings to come up with the list, meaning that it's pretty clearly a statement of opinion (the aggregated opinion of all the users who entered review info on TripAdvisor). However, to try to turn that into a defamation claim, the hotel's lawyers appeared to argue that because TripAdvisor came up with a numerical rank from all that user generated input, that made it a "factual statement" rather than an opinion. As you know, opinions aren't defamatory, but incorrect facts can be.

The court isn't buying it, at all.

It is true that the Defendant published an article
with a numerical ranking, and that the Defendant suggests reasons to support its opinions,
including that “87 percent of those who reviewed [Grand Resort] recommended against staying
there,” but neither the fact that Defendant numbers its opinions one through ten, nor that it
supports its opinions with data, converts its opinions to objective statements of fact. Any
reasonable person can distinguish opinions based on reasons from facts based on reasons—just
because TripAdvisor states its reasons for including Grand Resort on its list does not make the
assertion one of objective fact. A person who is unable to distinguish the phrase “it is hot,” a
subjective opinion, from “it is one-hundred degrees,” an objective fact, is hardly “reasonable.”
Similarly, TripAdvisor’s “Dirtiest Hotels” list is clearly unverifiable rhetorical hyperbole.

TripAdvisor’s list is of the genre of hyperbole that is omnipresent. From law schools to
restaurants, from judges to hospitals, everything is ranked, graded, ordered and critiqued.
Undoubtedly, some will accept the array of “Best” and “Worst” rankings as impenetrable
maxims. Certainly, some attempt to obfuscate the distinction between fact and opinion as part of
their course of business. For those that read “eat here,” “sleep there” or “go to this law school”
and are unable to distinguish measured analysis of objective facts from sensational “carnival
barking,” compliance will be both steadfast and assured. Nevertheless, the standard, fortunately,
is what a “reasonable person” would believe. A reasonable person would not confuse a ranking
system, which uses consumer reviews as its litmus, for an objective assertion of fact; the
reasonable person, in other words, knows the difference between a statement that is “inherently
subjective” and one that is “objectively verifiable.”

I find the implicit suggestion in there that the plaintiff is not a reasonable person somewhat amusing as well. Either way, as Goldman notes, this should be a somewhat useful case whenever others are threatened for opinion-based lists they put together. That said, as a district court ruling it doesn't have much widespread impact, but with clear and concise reasoning, that doesn't mean it can't be helpful in convincing other courts to rule similarly.

from the file-a-damn-lawsuit-or-pipe-down dept

We recently wrote about a so-called "online reputation management" company that was getting a lot of press attention for promising to sue TripAdvisor for reviews that certain venues didn't like and believed to be defamatory. As we mentioned at the time, this felt a lot more like a publicity stunt for the company (which we won't name for that reason), while noting that, in the US at least, TripAdvisor was rightfully protected against claims of defamation on content from users, thanks to Section 230. In the UK, where the reputation management firm is based, it's not quite as clear cut.

Perhaps more interesting, however, is that the company is now saying that it's also prepared to go after the writers of the actual reviews. While that's at least moving the liability in the right direction, it does make you wonder if such an effort will seriously backfire. I mean, a hotel that sues a customer for a bad review might not get many more bad reviews... but it might not get many more customers, either.

from the reading-between-the-lines dept

A bunch of folks have sent in variations on this story of the guy who runs an online "reputation management" company and is very publicly threatening to sue travel review site TripAdvisor under the legal theory of "group defamation." No lawsuit has actually been filed, and any such lawsuit would be a total dead end and waste of time and money for the "reputation management" firm. That's because TripAdvisor is a US company, and thus it is clearly protected from defamation lawsuits on the content written by its users by Section 230. And while this reputation management firm is in the UK, thanks to the US's new libel tourism law, any judgment in the UK would be unenforceable.

In other words, the legal threats are completely bogus. Having read through the various articles covering it, you could be forgiven for thinking that this is really just a PR campaign for the "reputation management" company, who I won't even bother to name, as it doesn't deserve any additional press coverage for threatening such a useless lawsuit.